STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3109

)

THOMAS SCHOPLER, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on April 1, 1982, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Jack Weins, Esquire

ABRAMS ANTON ROBBINS RESNICK SCHNEIDER & MAGER, P.A.

2021 Tyler Street Post Office Box 650

Hollywood, Florida 33022

The issue involved in this case is whether the Respondent Thomas Schopler, D.D.S., should be subjected to disciplinary action for placing crowns in a patient's mouth in an allegedly incompetent and negligent manner.

At the final hearing Dr. Mervyn Dixon, Dr. Irving Diamond, Dr. Gary Ozga and Lorraine Romano testified on behalf of the Petitioner and Petitioner's Exhibits 1-6 were offered and admitted into evidence. The Respondent Thomas Schopler and Theresa E. Schopler testified on behalf of the Respondent.

Respondent's Exhibit 1 was offered and admitted into evidence. Subsequent to the hearing, the Respondent furnished an additional exhibit which is admitted as Respondent's Composite Exhibit 2.

Proposed Findings of Fact and Conclusions of Law have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

1. On November 17, 1981, a one-count Administrative Complaint was filed against the Respondent Schopler which alleged that he placed crowns on teeth numbers 7, 8, 9 and 10 (right lateral incisor, right central incisor, left central incisor and left lateral incisor) of Lorraine Romano in an incompetent and negligent manner which constituted malpractice and which failed to meet minimum standards of performance in treatment when measured against generally prevailing peer performance in violation of Sections 466.24(2), (3)(c) and (3)(d), Florida Statutes, as continued forward as Section 466.028(1)(y), Florida Statutes (1979).

   
   

2. At all times material hereto, the Respondent Schopler was a dentist licensed by the State of Florida having been issued license number DN 0005316 and was engaged in the practice of dentistry in Pompano Beach, Florida.

   
   

3. During the period from August, 1978 until February 16, 1979, Dr. Gary Ozga was a dentist providing dental services as an independent contractor at Respondent's dental office in Pompano Beach.

   
   

4. During the period from October, 1978 until March, 1979, Lorraine Romano went to Respondent's dental office in Pompano Beach and received dental treatment from Dr. Ozga.

   
   

5. The dental treatment provided by Ozga to Ms. Romano included the preparation of Romano's teeth numbers 7, 8, 9 and 10 for permanent crowns, the taking of impressions for permanent crowns and the cementing of temporary crowns into Ms. Romano's mouth with temporary cement.

   
   

6. The amount of compensation which Dr. Ozga would normally have received for the crown work on Romano was reduced by one-third by the Respondent to reflect the fact that Dr. Ozga did not cement the permanent crowns into Ms. Romano's mouth.

   
   

7. On or about March 13, 1979, the Respondent Schopler delivered permanent crowns to Ms. Romano for her teeth numbers 7, 8, 9 and 10, cementing them in with temporary cement.

   
   

8. On May 1, 1979, Ms. Romano visited the Respondent Schopler's dental office to complain concerning the size and color of her permanent crowns. In response to these complaints, the Respondent Schopler removed, recontoured and changed the color of the crowns.

   
   

9. On May 14, 1979, the Respondent Schopler recemented the permanent crowns into Ms. Romano's mouth.

   
   

10. The crowns on Ms. Romano's teeth numbers 7, 8, 9 and 10 had poor gingival marginal adaptation which could in time produce problems in the gums and teeth.

    
    

11. The crown on Ms. Romano's left lateral incisor, number 10, had open margins on the lingual and mesial aspects of the tooth. An open margin on a crown creates a pocket under the tooth which could lead to recurrent decay.

12. The crown on Ms. Romano's left central incisor, number 9, had a margin which was short of the gingivival margin and which was open on the mesial aspect of the tooth. When the margin is open as was Ms. Romano's, a metal explorer can be placed between the metal in the crown and the tooth. This results in an unattractive appearance and the possibility of recurrent decay.

    
    

13. The crown on Ms. Romano's right lateral incisor, number 7, had a margin which was short of the gingivival margin on the facial aspect of the tooth and which was open on the mesial aspect.

    
    

14. The actions of the Respondent Schopler in cementing ill-fitting and discolored crowns into Ms. Romano's mouth failed to meet prevailing standards of peer performance in the Fort Lauderdale/Broward County area.

    
    

15. The unrefuted testimony of the state's expert witnesses, Drs. Dixon and Diamond was that the permanent crowns on Ms. Romano's teeth failed to meet minimum standards of dental performance.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute. See Section 120.57(1), Florida Statutes.

    
    

17. The Respondent Schopler is charged with violating Sections 466.24(2), (3)(c) and (3)(d), Florida Statutes, (1977) which empower the Board of Dentistry to take disciplinary action against a dentist who has been guilty of, inter alia, gross ignorance or willful incompetence, malpractice or negligence in the practice of dentistry. Pursuant to the 1977 statute, the penalty which the Board is empowered to impose upon a licensee found to have violated Sections 466.24(1)-(3), Florida Statutes, is limited to suspension or revocation of a license. The Respondent Schopler is also charged with violating Section 466.028(1)(y), Florida Statutes, which in pertinent part subjects a dentist to disciplinary action for the failure to meet minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. The penalty for a violation of Section 466.028(1)(y) includes revocation or suspension of a license and/or imposition of an administrative fine not to exceed $1,000 for each separate offense and/or placing a licensee on probation subject to specified conditions and/or restricting the authorized scope of practice. See Section 466.028(2)(a)-(f), Florida Statutes (1979).

    
    

18. The offense charged in the Administrative Complaint occurred in May, 1979. At that time Section 466.24, Florida Statutes, was in effect and prescribed only two penalties for a violation of its provisions, suspension or revocation of a license. Section 466.028, Florida Statutes (1979), which in substantive terms carried forward the prohibition contained in Section 466.24 concerning dental malpractice, did not carry forward the former statute's prescribed penalties. Rather, the 1979 revised statute added penalties which were not in force and effect when the act alleged in the Administrative Complaint occurred. See Chapter 79-330, Laws of Florida, effective July 1, 1979. Under these circumstances, the only penalty which may be imposed in this case if the Respondent were found to have violated Section 466.028(1)(y), Florida Statutes (1979), is revocation or suspension of his license. See Linkous Realty, Inc. v. Department of Professional Regulation, Board of Real Estate, Case No. 81-1343, August 4, 1982, Vol. 7, FAU., at 1665.

19. In his Proposed Recommended Order, the Respondent Schopler, citing Section 466.018, Florida Statutes, argued that since he was not the dentist of record for Ms. Romano, he was not primarily responsible for her care and treatment which was rendered on an emergency basis due to the unavailability of Dr. Ozga. However, Section 466.018, Florida Statutes, which provides that the dentist of record shall be primarily responsible for a patient's care and treatment, does not immunize from disciplinary action a dentist who undertakes to treat another dentists' patient and does so in a negligent manner. Moreover, even assuming the statute was intended to be construed as urged by the Respondent, it was not in effect at the time the acts set forth in the administrative Complaint occurred. See Chapter 79-330, Laws of Florida, effective July 1, 1979.

    
    

20. The unrefuted testimony of the Department's experts was that the crowns placed in Ms. Romano's mouth by the Respondent Schopler did not meet minimum standards of peer performance in the Fort Lauderdale/Broward County area. At the final hearing, the Respondent Schopler did not dispute the contention that Ms. Romano's crowns were too long, the wrong color and did not fit her mouth. To the contrary, the Respondent Schopler admitted that he told Ms. Romano the permanent crowns had each of these problems and yet cemented those same crowns into her mouth. Under the circumstances of this case, once the Respondent Schopler undertook to treat Ms. Romano he assumed a duty to treat her as he would any other patient. By cementing permanent crowns into Ms. Romano's mouth which he knew to be the wrong size and color, the Respondent acted in a willfully negligent manner and failed to meet the minimum standards of dental performance in the Fort Lauderdale/Broward County area.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Respondent Schopler's license to practice dentistry be suspended for two (2) months.

DONE and ORDERED this 24th day of September, 1982, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1982.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Jack Weins, Esquire

ABRAMS ANTON ROBBINS RESNICK SCHNEIDER & MAGER, P.A.

2021 Tyler Street Post Office Box 650

Hollywood, Florida 33022

Fred Varn, Executive Director Florida Board of Dentistry

Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein Secretary

Department of Professional Regulation Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-003109

Orders for Case No: 81-003109